Momcilovic and Section 109 of The Australian Constitution

Section 109 of the Commonwealth Constitution1 exists to resolve conflicts
between inconsistent Commonwealth and State laws. In Momcilovic2, the High

Court considered whether the State law3 was inconsistent with the
Commonwealth law4 (Code) to enliven s 109. The majority view of Crennan
and Kiefel JJ, and Gummow J did not find inconsistency, whereas Hayne J
dissented. This essay will analyse Their Honours reasoning and contends that
Hayne Js approach should be preferable for determination of inconsistent
Commonwealth and State laws.
In Momcilovic, Vera Momcilovic was convicted in the County Court of

Victoria for drug offence under the Drugs Act5. The Code had jurisdiction for
the same subject matter because Momcilovic was a resident of Queensland.6
The High Court determined if the following arguments gave s 109 operation:7
1. Different standards and burdens of proof; and
2. Different penalty provisions and methods of trial8.
Commonwealth of Australia Constitution Act (Cth).

Momcilovic v The Queen [2011] HCA 34 (8 September 2011).
3
Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC.
4
Criminal Code Act 1995 (Cth) s 302.4.
5
Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC.
6
Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [139].
7
Victorian Government Solicitors Office, Case Note Momcilovic v The Queen [2011] HCA
34 (8 September 2011) (Case Note, Victorian Government Solicitors Office, September
2011) 3.
8
Different methods of trial are also referred to as different sentencing regimes.
2
Page 1 of 11
I firstly refer to Hayne Js judgement. His Honour only considered the

second argument for inconsistency9, and had found inconsistency.
Hayne J discussed six principles from [314]-[319] to reach no direct

inconsistency. Hayne J suggests the test is10 to determine the reach and
operation of the federal lawby reference to the language, purpose and scope
of the law [and] by reference to considerations of consistency11.
Hayne J firstly identified that the law of the Commonwealth and the
law of the State were both statements of a norm of conduct and a
prescription of penalty12; that is both laws are of the same subject matter.
His Honour then employed Dixon Js test, being does the federal law
alter, impair or detract13 the state law, which he answered affirmatively. This
was a test for direct inconsistency, and Hayne J referred to Dixon J in Ex parte
McLean14 at [326] as authority to emphasise existence of inconsistency for
different sanctions on laws of the same subject matter. Here, the consequences
of breach depended upon the law the charge was brought under, hence
inconsistent laws.15

Ignoring the validity of the law in question as it was not in contention.
11
12
Ibid [292].
13
Ibid [317].
14
Ex Parte McLean [1930] HCA 12 (6 June 1930).
15
10
Page 2 of 11
The approach by Hayne J is favourable in determinations of s 109. His

Honour emphasises that there should only be one body of law.16 It is vital for
citizens, whom which Parliament are a representative of, to know what the law
of the day is17, by understanding what the judiciary constructs as the scope and
purposes for Commonwealth and State laws, in order to maintain confidence in
the legal system.
Judicial findings should only be constructed and should not be

commanded by Parliament in recognition of separation of powers.18 Judges are
required to use external legislation and relevant prescribes in order to construct
ss 71AC and 302.4.19 Hayne J had rightly rejected submissions by Parliament
that commanded the legislative intention of s 302.4.20 If it were otherwise,
Parliament would have power to sway the determination of cases, thus
undermining the role of the judiciary.21 A court is to judge in accordance with
the law, and are guided by/representative of the values of the society of the
day.22
In my interpretation of [357], it is important to have both simultaneous

obedience and operation of the law23 because it provides legal protection by
16

Geoffrey Lindell, Grappling with inconsistency between Commonwealth and State
legislation and the link with statutory interpretation (2005) 8 Constitutional Law & Policy
Review 26.
18
Stephen Gageler, Legislative Intention (Speech delivered at the 20 th Lucinda Lecture,
Monash University, 15 September 2014) 3.
19
20
Ibid [307]
21
22
23
Operation refers to the enforcing of consequences.
17
Page 3 of 11
advocating uniform sentencing. The test for direct inconsistency highlights the
reality that authorities have discretion between Commonwealth and State laws.
Authorities should not have that discretion. This ensures public confidence in
the legal system, because prosecutors for the Sate and the Commonwealth
should not be laying the charges upon whim or fancy.24 The discretion is for
the judiciary alone.25
Now consider Gummow J. His Honour answered both questions before

the Court and found no indirect inconsistency for both.26
His Honour found that s 527 did not apply to the charge under s 71AC.28
Since s 5 was not applicable, so the argument fell.
Gummow J then considered the second question29, explaining his

course at [258]. The first task is to construe the Commonwealth law in
accordance with that body of doctrine. Only then would it be appropriate to
find if State law is inconsistent with Commonwealth law. Gummow Js
approach is similar to Hayne Js course.
24

Ibid [313].
26
Ibid [207].
27
Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5.
28
Concerning the first question for different standards and burdens of proof.
29
Concerning different penalties and different methods of trial.
25
Page 4 of 11
Gummow J rejected direct inconsistency by comparison of the

elements between the two laws in question.30 A law is not confined to one
section, but requires composites of other provisions to give meaning to that
section.31 Accordingly, the different penalties do not automatically render the
Commonwealth and State laws inconsistent.
Gummow J at [241] found the simultaneous obedience test to be

inadequate for s 109. The notion of obedience concerned legally imposed
duties by two legislatures, meaning s 109 limited State legislative powers,
contrary to our understanding of sovereignty. His Honour instead tested
operational inconsistency.
Initially sections 71AC and 302.4 were operationally inconsistent

because the inconsistency arises upon the sentencing of those convicted; that is
inconsistency only upon exercise of the law32. Ultimately there was no
inconsistency because His Honour saw the safeguard against double
punishment as sufficient to prevent inconsistencies in penalty and sentencing.33
Under common law principle, Momcilovic would be unlikely to face further
federal prosecution (following State prosecution) for the same conduct. Even if
otherwise, s 4C(2)34 would intervene to prevent injustice, thus preventing
inconsistency in penalty and sentencing.35
30

Ibid [237].
32
33
By not being punished twice, there is only one law in operation and hence no inconsistency
of concurrently operating laws.
34
Crimes Act 1914 (Cth) s 4C(2).
35
31
Page 5 of 11
I agree with Gummow Js approach to the first question. At [273], His

Honour explained the exclusion of a s 5 equivalent in the Code was patched
by State law. The construction evinced Commonwealth Parliaments intention
for concurrent federal and state laws. This is good reconciliation to allow the
State and Commonwealth laws to operate concurrently, particularly because s
5 and the Commonwealth were not inconsistent.
Gummow J then constructs the legislation in the same manner as

Hayne J for the second question. My criticism is that authorities are still left
with discretion between State and Commonwealth legislation. Gummow J has
undermined the urge for creating uniformity in criminal penalty and
sentencing.36 Furthermore, to rely on other barring provisions is a complex and
only temporal solution because a Commonwealth Parliament could potentially
legislate to allow operation of one desired law at any one instance.
Finally consider Crennan and Kiefel JJ. Their Honours found no

indirect inconsistency following the covering the field37 test.
Crennan and Kiefel JJ found s 5 was not applicable to the definition of

s 71AC, thus is irrelevant and rejected.38
Dick, Tim, Uniform criminal code urged for states, The Sydney Morning Herald (online), 9
January 2007 < http://www.smh.com.au/news/national/uniform-criminal-code-urged-forstates/2007/01/08/1168104923405.html?s_cid=rss_smh>
37
Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 (19 April 1926) [489].
38
36
Page 6 of 11
For the second question, Crennan and Kiefel JJ posed the test as Was
the Commonwealth coverage of the subject matter complete, exhaustive or
exclusive?39Their Honours noted no prima facie presumption that the
Commonwealth (as superior legislature) intended to exclude State legislative
power.40
Crennan and Kiefel JJ constructed the Commonwealth coverage by

reference to the context in which the Code exists. The Commonwealth criminal
law cannot operate alone, requiring the cooperation of State laws to enact
purposes of criminal justice.41 Although not determinative, Their Honours
found the reality of federal and state authorities operating together useful in
creating context for the coverage of the Code.
Next, [637] explains inconsistency is not determined by different

penalties and sentencing regimes. Their Honours relied on authority in The
Kakariki42 to suggest that authorities are not under a duty to prosecute every
case, and the power to prosecute is not intended to be exclusive.43
Crennan and Kiefel JJ made it certain at [655] that different methods of

trial44 cannot give rise to inconsistency. This is unavoidable and inherent to
39
Ibid [637].
Ibid [643].
41
42
Victoria v Commonwealth ("The Kakariki") [1937] HCA 82 (17 December 1937) [631]
43
Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [648]
44
Including different sentencing regimes.
40
Page 7 of 11
having constitutional powers for the Commonwealth and States to legislate on

the same subject matter.
The same criticisms of Gummow Js reasoning for the second question

apply.
Additionally, Their Honours suggest that different sentencing regimes

cannot create inconsistency for the purposes of s 109, even if there were no
safeguards to prevent double punishment for example. This extends beyond
Gummow Js approach, and is dangerous because it will remove a grounds of
appeal should there be an error in the exercise of sentencing. The proposition is
over-emphasising the federal supremacy45 by giving Commonwealth
Parliament looser rule in determining the standards for trial and sentencing as
it cannot be challenged.
Finally, statements of intention should have no effect. It so happened

that s 300.4 was in accord with the construction and thus Their Honours had
not found against the statement of intention.46 A statement of intention in
accord with constructed intention, if given effect, would imply that Parliament
has a limited ability to influence judicial interpretation, even if that intention is
valid. If legislation relies on statements of intention to fill any drafting
Arun Sagar, Federal Supremacy and the Occupied Field: A comparative Critique (2013) 43
Publius: The Journal of Federalism 254.
46
45
Page 8 of 11
deficiencies, the test of covering the field may be misapplied from incorrect
implications drawn from such statements. The exercise of interpretation should
be free of Parliamentary intent, regardless of how compliant to judicial
findings.
This essay has summarised the judgements of Gummow J, Crennan and

Kiefel JJ, and Hayne J, and highlighted guiding points in determination of
questions regarding s 109. Their Honours each applied different tests in for
direct and indirect inconsistency. This essay has found Hayne Js minority
view to be the preferable. The structure of our government following
federalism, giving Commonwealth and State Parliaments certain concurrent
powers, makes inconsistencies unavoidable. Hayne Js approach provides a
better route for maintaining public confidence, in the balance of ensuring
constitutional exercises of Commonwealth and State powers.
Page 9 of 11
Bibliography
A. Articles/Books/Reports
Finnis, John Mitchell, Separation of Powers in the Australian Constitution
(1968) 3 Adelaide Law Review 159
Joseph, Sarah, and Melissa Castan, Federal Constitutional Law: A
Contemporary View (Thomson Reuters (Professional) Australia Limited, 4th
ed, 2014) 271
Lindell, Geoffrey, Grappling with inconsistency between Commonwealth and
State legislation and the link with statutory interpretation (2005) 8
Constitutional Law & Policy Review 25
Sagar, Arun, Federal Supremacy and the Occupied Field: A comparative
Critique (2013) 43 Publius: The Journal of Federalism 251
Secher, Ulla, The Concept of Operational Inconsistency in Australia:
Implication for Native Title the Common Law and Statutory Positions Part
1 (2010) 18 Australian Property Law Journal 150
B. Cases
Clyde Engineering Co Ltd v Cowburn (1926) HCA 6 (19 April 1926)
Ex Parte McLean [1930] HCA 12 (6 June 1930)
Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Victoria v Commonwealth ("The Kakariki") [1937] HCA 82 (17 December 1937)
Page 10 of 11
Viskauskas v Niland [1983] HCA 15 (18 May 1983)
C. Legislation
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
D. Other
Dick, Tim, Uniform criminal code urged for states, The Sydney Morning
Herald (online), 9 January 2007 <
http://www.smh.com.au/news/national/uniform-criminal-code-urged-forstates/2007/01/08/1168104923405.html?s_cid=rss_smh>
Gageler, Stephen, Legislative Intention (Speech delivered at the 20th Lucinda
Lecture, Monash University, 15 September 2014)
Riordan, Jaani, Constitutional Law Notes, Jaani.net (1 November 2005) <
http://www.jaani.net/resources/law_notes/constitutional_law/>
Victorian Government Solicitors Office, Case Note Momcilovic v The
Queen [2011] HCA 34 (8 September 2011) (Case Note, Victorian
Government Solicitors Office, September 2011)
Page 11 of 11

Momcilovic and Section 109 of The Australian Constitution

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Section 109 of the Commonwealth Constitution1 exists to resolve conflicts

between inconsistent Commonwealth and State laws. In Momcilovic2, the High

In Momcilovic, Vera Momcilovic was convicted in the County Court of

Commonwealth of Australia Constitution Act (Cth).

I firstly refer to Hayne Js judgement. His Honour only considered the

Hayne J discussed six principles from [314]-[319] to reach no direct

Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [303].

The approach by Hayne J is favourable in determinations of s 109. His

Judicial findings should only be constructed and should not be

In my interpretation of [357], it is important to have both simultaneous

Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [283].

Now consider Gummow J. His Honour answered both questions before

Gummow J then considered the second question29, explaining his

Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [359].

Gummow J rejected direct inconsistency by comparison of the

Gummow J at [241] found the simultaneous obedience test to be

Initially sections 71AC and 302.4 were operationally inconsistent

Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [206].

I agree with Gummow Js approach to the first question. At [273], His

Gummow J then constructs the legislation in the same manner as

Finally consider Crennan and Kiefel JJ. Their Honours found no

Crennan and Kiefel JJ found s 5 was not applicable to the definition of

Crennan and Kiefel JJ constructed the Commonwealth coverage by

Next, [637] explains inconsistency is not determined by different

Crennan and Kiefel JJ made it certain at [655] that different methods of

having constitutional powers for the Commonwealth and States to legislate on

The same criticisms of Gummow Js reasoning for the second question

Additionally, Their Honours suggest that different sentencing regimes

Finally, statements of intention should have no effect. It so happened

This essay has summarised the judgements of Gummow J, Crennan and

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Viskauskas v Niland [1983] HCA 15 (18 May 1983)

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